Mr Cameron Webb v Aurizon Operations Limited, Aurizon Operations Limited (No. 2)
[2024] FWC 513
•5 MARCH 2024
| [2024] FWC 513 [Note: An appeal pursuant to s.604 (C2024/1482) was lodged against this decision.] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mr Cameron Webb
v
Aurizon Operations Limited, Aurizon Operations Limited (No. 2)
(C2024/130)
| DEPUTY PRESIDENT CROSS | SYDNEY, 5 MARCH 2024 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] - Notice to Produce
On 9 January 2024, Mr Cameron Webb (the Applicant) applied under section 739 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with an alleged dispute with Aurizon Operations Limited (the Respondent) regarding a provision titled Disciplinary Matters contained in the Aurizon NSW Coal Operations Enterprise Agreement 2021 (the Agreement). The Applicant was represented by the Australian Rail Tram and Bus Industry Union (the RTBU).
The Respondent objected to the Application on the grounds that the Commission did not have jurisdiction to deal with the Application because the relevant steps of the dispute resolution procedure at clause 54 of the Agreement had not been followed, that there was no utility in the relief sought in the Application as the relevant investigation had been completed, and that the relief sought by the Applicant was inconsistent with the provision of the Agreement that provided that disciplinary inquiries and investigations shall be confidential, and so would not be allowed pursuant to s.739(5) of the Act.
In a decision published on 5 February 2024[1] (the Decision), I rejected the objections of the Respondent, and found:
(a) The Commission had jurisdiction to deal with the Application because the relevant steps of the dispute resolution procedure at clauses 54.1 and 54.2 of the Agreement had been followed;[2]
(b) The dispute clearly continued to be about matters arising under the Agreement being Clause 12, in particular the term requiring adherence to the principles of natural justice and due process;[3] and
(c) Regarding the Respondent’s jurisdictional objection that the relief sought by the Applicant was inconsistent with Clause 12.2 of the Agreement that provided that disciplinary inquiries and investigations shall be confidential, and so would not be allowed pursuant to s.739(5) of the Act, that confidentiality could easily be observed and applied by the provision of the investigation report that the Respondent relied upon in the meeting of 23 January 2024, said to substantiate the allegations against the Applicant (the Report), in redacted form. It was noted that the Applicant had proposed provision of a redacted Report, and that the appropriate time to ensure compliance with Clause 12.2, and Clause 12 as a whole, is when production and access issues are being considered.[4]
After receipt of the Decision, the Applicant and the Respondent corresponded. In that correspondence the Respondent resisted production of the Report in any form. On 9 February 2024, the RTBU wrote to my Chambers to advise that they sought to have the matter listed urgently.
On 14 February 2024, the Applicant filed a Form F52 Application for an order for production of documents (the Form F52) seeking production of the following:
The investigation report, including but not limited to annexures produced by Kieran Plasto / Resolvere for the Respondent in respect of the disciplinary investigation concerning Mr Webb, with such names of witnesses to be redacted as to employee names.
Regarding why the documents were sought, the Form F52 provided:
1. The documents being sought is to allow Mr Mitchell’s decision and reasons for show cause, to be tested in relevant respects, as set out below.
Regarding how the documents will assist the Commission in reaching a decision, the Form F52 provided:
1. The documents are relevant to issues in dispute, including substantive procedural fairness and adherence to the terms of the Enterprise Agreement.
2. They will assist the Commission by:
a. Allowing the Respondent’s evidence to be fully understood; and
b. Ensuring the applicant is provided with procedural fairness in that he will be allowed to fairly test the deliberations, conclusions and decisions made by the Respondent.
In the afternoon of 14 February 2024, a hearing was held to address the issue of production of the Report in redacted form (the Hearing). In that Hearing statements, all dated 14 February 2024, were received from:
(a) Mr Stephen Wright, the Locomotive Division Organiser, for the Applicant;
(b) Mr Jason Hart, the Industrial Officer, for the Applicant; and
(c) Mr Mitchell Morgan, a Regional Operations Manager, for the Respondent.
(a) Mr Wright
Mr Wright was cross-examined. Mr Wright’s evidence disclosed that the employee who had complained of the Applicant’s conduct (the Complainant) had also contacted the RTBU on 11 January 2024. In order to avoid a conflict Mr Wright arranged for a colleague to deal with the Complainant.[5] Mr Wright did not inform the Complainant that he was representing the Applicant,[6] or that the RTBU was involved in seeking production of the Report.[7]
In explaining how any conflicts would be dealt with, Mr Wright’s evidence was:[8]
In the information provided by Mr Hart, he has - he has explained the union's purpose in seeking the report, in the following terms:
It is crucial that Mr Webb is able to interrogate the evidence that arose and is relied on to substantiate all three allegations against him and for him to make a sound, rational and fulsome response to the show cause letter.
Now, that must include, in whatever 'interrogation' means, that must include refuting information provided by the complainant, Ms Rueda, would you agree?--- No, I don't agree.
No? You don't say that any part of your purpose in seeking the report, despite what I've just read to you, is to seek to criticise, or respond to, or deny evidence that Ms Rueda gave to the investigation?--- No, I don't believe that. I believe that we, as a union and as a representative of the employees that are members of our union, we try to ensure the confidentiality within the investigation. If I'm dealing with an employee, or one of my members that has a conflict with another employee, another member of the union, we don't conflict, we don't confer with our colleagues, we allow each colleague to do their job, as they're required. We believe that in the obtaining of the information gives our member the opportunity to respond to the allegations put on the table, with all the information provided.
(b) Mr Hart
Mr Hart outlined the course of correspondence with the Respondent following the Decision. He was not cross-examined.
(c) Mr Morgan
In his statement, under the heading “Concerns regarding provision of investigation reports to respondents”, the totality of Mr Morgan’s evidence was as follows:
I am very concerned by the prospect that an investigation report might be provided to a respondent employee during a show cause and/or investigation process, for these reasons:
(a) I am not aware of any show cause process where I have provided an investigation report to the respondent employee during my time with Aurizon. It would be a significant shift in how investigation and show cause processes proceed if this was required.
(b) Investigators typically seek information from a number of Aurizon employees during the investigation who may be potential witnesses to the allegations in question. Those employees are asked to participate in the investigation to ensure that the allegations can be investigated thoroughly, which is in the best interests of all parties to the particular matter and also Aurizon as an organisation.
(c) Because of this, it is possible in future instances that some witnesses may not be comfortable in providing information which is adverse to their co-workers.
(d) Clause 12.2 of the Aurizon Coal NSW Enterprise Agreement states that Disciplinary inquiries and investigations shall be confidential.
(e) We keep the investigation process confidential by:
(i) Directing participants in an investigation not to discuss the matter with any other person unless specifically authorised. This helps to ensure the integrity of the investigation process.
(ii) Not disclosing the investigation report to the parties to an investigation.
(f) If the disclosure of investigation reports was required in show cause processes, I am concerned that participants may decline to participate in investigation processes.
(g) Alternatively, I believe there is a risk that they will participate but will not do so candidly because they may be concerned about adverse consequences if the respondent
employee is advised of their participation by receiving a copy of the investigation report in a subsequent show cause process.
(h) The outcome of a disciplinary process may not be termination of employment and the respondent may return to their place in the business. In those circumstances, there is considerable risk of disharmony amongst the workforce because of the release of an investigation report where the participants may have given information to the investigator adverse to another employee. In extreme cases there may be risk of harm.
I do not believe these risks and concerns are significantly mitigated by a protocol whereby a report is redacted. In many cases the practical reality is that inferences can easily be drawn from the content of evidence as to who has participated, and in any event I think the risk of non- participation or less than candid participation still remains.
I am concerned that providing the investigation report in any capacity to an employee (or their representative) will put at risk the confidentiality of the investigation, the report and the participants involved. The particular complainant in this matter has specifically raised a concern with me about how she feels unsupported by the RTBU (I understand the complainant is a member) in this matter given the RTBU is providing assistance to Mr Webb. I have also been advised by a Regional Operations Leader who reports to me that another participant in the investigation had advised them (the leader) that the participant felt they were placed in a difficult position because of their relationship with the other stakeholders in the investigation.
21. Even with confidentiality there is obviously a chance that respondent employees will come to know or suspect who has given what may be adverse information against them. However maintaining the confidentiality of the investigation report and taking the other steps referred to above is the best Aurizon can do to manage a sensitive and at times difficult situation while still following a fair disciplinary process. I also believe we have committed to no less than this to our employees in our enterprise agreements by the concept that investigations are confidential.
[Emphasis added]
In cross-examination, Mr Morgan confirmed that the investigator of the allegations, who was described in the show cause letter as “an independent and impartial investigator”, was a previously employed in a Human Resources role with the Respondent.[9]
Mr Morgan also confirmed that no witnesses in the investigation refused to provide statements, though some initial concern was expressed.[10]
While in further re-examination Mr Morgan later expressed concern that “…if, you know, arising from this matter, the precedent is set that even redacted reports will be provided to anyone, but, you know, outside of - well, anyone, I think it - it sends a challenging message for me and the organisation to be able to promote a culture where we would like to, you know, create a psychologically safe space for people to speak up against bullying and harassment”,[11] in response to questions posed by the Commission shortly before, the following exchange occurred:[12]
So assuming the report is redacted and assuming then that it's provided to an officer of the RTBU who has given an undertaking to maintain confidentiality over that document, and not disclose whatever might be concerning. That obviates the concerns in relation to confidentiality, does it not? --- I would say so, yes.
Applicant’s Submissions
Regarding confidentiality, the Applicant submitted that while the Respondent contends[13] that the Commission may not have jurisdiction to order the production of the Report, the Commission rejected the submissions made by the Respondent in respect of the confidentiality provisions of clause 12.2 of the Agreement in the Decision.[14] The Applicant has since at least the 23 January 2024, put the Respondent on notice that he requires access to the Report and has reiterated the offer to receive the Report in redacted format.
Section 590 of the Act empowers the Commission to inform itself in relation to any matter before it in such matters as it considers appropriate and may do so by requiring a person to provide copies of documents or records, or to provide any other information to the Commission. The Commission is further empowered to order the production of documents, records or information pursuant to s 590(2)(c) and Fair Work Commission Rule 54(1)-(3) where a party in a matter before the Commission may, by lodging a draft order, request that the Commission inform itself in relation to the matter by requiring a person to provide copies of documents or records or provide any other information under subsection 590(2) of the Act.
The Applicant submitted it is entirely uncontroversial that unions routinely support members in matters involving other members. Internal union processes to deal with such instances are well established and formed the evidence of Mr Wright. In contrast, the evidence of Mr Morgan was that employees who had been requested to provide statements in respect of the investigation were ultimately directed to provide those statements, and in those circumstances of coercion, the evidence as contained in the Report of such witnesses must, in line with the principles of procedural fairness, be available to the Applicant for consideration and response.
While submitting that the factual matrix of the present matter is distinguishable from Coutts v Close (Coutts),[15] to the extent that the Applicant does not seek to the disclosure of every last scintilla of evidence, but rather the substantive, redacted Report on which a decision to terminate his employment has been based, the Applicant referred to [118] of Coutts, where the Court held that the overriding principle requires the decision-maker to bring to the applicant’s attention the critical issue or factor on which the decision is likely to turn so that they may have an opportunity of dealing with it. Where Mr Webb in this present matter has previously identified errors or inconsistencies, it would be a denial of procedural fairness to allow him to test the findings contained in the Report.
The Applicant submitted that it was revealed during the course of the investigation that a number of errors and inconsistencies were uncovered, and which were relevant to the allegations put to Mr Webb. The rules of procedural fairness necessitate that Mr Webb be given the opportunity to deal with matters that are prejudicial to him. Such an opportunity must include the opportunity of dealing with any matters raised against him which includes a Report that may contain even more errors that are presently unknown and untested.
The Applicant submitted that ultimately, the question is whether the Applicant has been given a reasonable opportunity to address issues relevant to his interests, and the answer must be that in the absence of the Report, the Applicant has been denied such an opportunity. The Applicant can only do so by having regard to the Report for the purpose of testing the rationality and logicality of the investigator’s and ultimately the decision-maker’s deliberative processes and decisions. This can only be achieved following an evaluation and consideration of materials the Respondent seeks to rely upon in coming to a decision which the Applicant accepts, based on the lower civil standard of the balance of probabilities, that the conduct occurred.
The Applicant submitted that Clause 12.1 of the Agreement requires that the disciplinary process must apply the principles of natural justice and due process, and that process encompasses in its entirety clause 12.1 to 12.4.3.
In conclusion, the Applicant submitted that clause 12.1 of the Agreement requires affected employees to be granted the protection of a fair process in which they have the opportunity to know and test the case against them, to correct errors or raise new or provide additional information where the ultimate sanction is significant and mean the termination of employment.
Respondent's Submissions
The Respondent submitted the dispute has evolved to the issue as to whether pursuant to clause 12 of the Agreement Aurizon can be required (Question One), or alternatively, should be required (Question Two), to provide a copy of the Report to the Applicant.
(a) Question One: can Aurizon be required to deliver the Report?
The Respondent submitted that Clause 12 provides no basis for a resolution of the dispute by an order or direction requiring Aurizon to provide the Report on any terms to anyone at any point in the processes contemplated by clause 12 and certainly not within a disciplinary process under clause 12.4. The only part of the clause which bears at all on the issue is clause 12.2. Disclosure would only be authorised (or permitted) such that it could be ordered in resolution of the Dispute if a basis to do so can be found elsewhere in the clause despite the confidentiality obligation. The Commission may not arbitrate an outcome which Aurizon itself is not at liberty to implement under the clause.
The Respondent submitted that Mr Webb has not been, and is not being, denied procedural fairness by reference to any identifiable external standard, however in any event that is not to the point. The point is whether clause 12 itself provides any basis for Aurizon to be required to (and permitted to) provide the Report to him.
The Respondent identified that the scheme of the clause is:
(a) When an incident occurs which might lead to disciplinary action, and it is necessary to ascertain the facts, clause 12.1 requires the facts to be ascertained by investigation;
(b) Natural justice and due process is required in the conduct of the investigation (Clause 12.1);
(c) The specific requirements are stepped out from clause 12.1.1 to 12.1.4. None of the steps require the Report to be provided to the employee (or anyone) and self-evidently the Report will not exist until after the investigation is complete;
(d) A disciplinary process (if there is one) cannot be commenced until the clause 12.1 investigation process is complete. This is the specific effect of the preamble to clause 12.4, which then exclusively governs the disciplinary process. Therefore, it is a separate, subsequent and self-contained process;
(e) Clause 12.4 has mandatory procedural fairness requirements (see clause 12.4.2) however they are expressly limited to 'penalty' and are specifically referable solely to aspects of the employee's employment history or their plans for improving their performance or conduct;
f) Given the express content of the procedural fairness obligation in clause 12.4 it is unavailable to supplement it by drawing from the specified obligations at the previous investigation stage, which are in any event directed to a different purpose; and
(g) There is no requirement anywhere in clause 12 for the employee to be given an opportunity to 'test' the findings of the investigation, and certainly no provision which allows or requires the Report to be provided.
The Respondent submitted that proper adherence to the principles in AFMEPKIU v Berri Pty Ltd (Berri),[16] specifically the requirements to give effect to the plain meaning of the words in accordance with their ascertainable purpose including the context provided by clause 12.2, strongly supports the Respondent’s contention that the clause does not require or even permit delivery of the Report to the Applicant.
Accordingly, the Respondent submitted an order requiring it to deliver the Report, in any form and on any terms, to the Applicant or to his representative, is beyond the authority of the Commission to order in these proceedings and would be specifically inconsistent with clause 12 of the Agreement.
Question Two: should Aurizon be required to deliver the Report?
The Respondent submitted that any discretion should be exercised by reference to all of the affected rights and interests. These include the Respondent's interests and those of other employees whose interests are or may be affected by the dispute and its resolution. However, the Respondent also identified the interests of hypothetical future participants (those who are bound by the Agreement) in future investigation processes.
The Respondent submitted that even if there was some limited utility, a proper balancing of the rights and interests of all stakeholders in the exercise of the Commission's broad discretion would not lead to a decision to require production of the Report in any form on any terms to the Applicant or his representative.
The Respondent noted as is explained by Mr Morgan in his evidence, which it submitted was not hypothetical, this is a matter of very grave concern to the Respondent, which relies on the candid participation in investigations to ensure it can assess allegations of the type which have been made and to make balanced and principled decisions which are protective of all employees in the workplace. Key to this is the assurance which the Respondent makes to participants, as required by clause 12.2, that investigations will be conducted in confidence. These factors were submitted to weigh heavily against any order requiring the production of the Report.
The Respondent noted the stated purpose of requesting the Report is to interrogate and test the evidence and, in doing so, inevitably to seek to persuade the Respondent that the complainant is a liar or at least either mistaken or exaggerating. It further noted that no steps have been taken by the RTBU to inquire of their complainant member whether they are comfortable for Mr Webb to receive the Report, for purposes which are plainly against the complainant's own interests, or to gain the complainant's consent.
In conclusion, the Respondent submitted that the production of the Report in the manner sought could not have relevance to the resolution of the dispute. It is an abuse of process for the Applicant to seek provision of the Report through an application pursuant to s.590(2) of the Act when that is the very matter which is in contest in the Dispute, and the Commission should not resolve the dispute by ordering Aurizon to disclose the Report in any form and on any terms to any person.
Consideration
It is important to keep in mind that the Application being pursued by the Applicant is pursuant to section 739 of the Act for the Commission to deal with an alleged dispute regarding the provision titled Disciplinary Matters contained in the Agreement, though the issue the subject of the dispute has developed in the course of the dispute to be regarding the failure to provide a redacted copy of the Report, which is now sought by the Form 52.
As I observed in the Decision:[17]
The dispute was clearly identified in the Application as the Respondent’s failure to adhere to principles of procedural fairness pursuant to clause 12 of the Agreement. That failure was particularised as failing to make the Applicant fully aware in writing of the Allegations, and failing to provide sufficient information for the Applicant to make an informed response to the Allegations.
And:[18]
Contrary to the Respondent’s submission, the dispute continues to “remain genuinely on foot” because the Applicant still asserts that the failure to provide a redacted copy of the Report constitutes a continuing failure to comply with Clause 12 of the Agreement.
Unfortunately, the Respondent seeks to cavil with the above conclusions without filing a Notice of Appeal, and submit that, as the matter has proceeded to Clause 12.4, the obligations of the application of the principles of natural justice and due process no longer apply.
I confirm my previous conclusions and find further that the matter is nonetheless not at the disciplinary outcomes stage (Clause 12.4) because it is clearly at the stage where the Applicant is afforded the opportunity to show cause, which has not occurred. Surely the Respondent is not suggesting that any show cause by the Applicant could not affect the subsequent disciplinary outcome.
Clause 12 of the Agreement provides:
12 DISCIPLINARY MATTERS
12.1 Process: Any Internal Investigation in relation to a matter or incident by the Company that may lead to disciplinary action being taken against an employee must apply the principles of natural justice and due process, Including:
12.1.1 The employee being made fully aware in writing of the allegations that are the subject of investigation; 12.1.2 The employee being provided with sufficient information to enable the provision of an informed response;
12.1.3 The employee being informed of their entitlement to have a Union representative present and/ or a witness /support person at any meetings/interviews, if so requested;
12.1.4 The employee being given reasonable time to prepare a response to the allegations that are the subject of the investigation; 1
2.1.5 Records of conversation and RU OK conversations are an informal counselling tool that do not form a part of the disciplinary process. This clause does not limit the Company's ability to use these informal counselling tools which may lead to the commencement of a formal discipline process.
12.2 Confidential: Disciplinary Inquiries and Investigations shall be confidential.
12.3 Investigations: Employees under investigation may be subject to the following action during the investigation: 12.3.1 Suspension from duty with no reduction of pay; or 12.3.2 Placed on alternative duties; or 12.3.3 Re-assessed and returned to normal duties.
12.4 Disciplinary Outcomes
12.4.1 Following the procedure In Clause 12.1 employees may be subject to the following discipline outcomes:
(i) Verbal warning with a file note entered on the employee's personnel file; or
(ii) Written warning or reprimand; or
(iii) Temporary reduction in position, classification level and pay (for a period of up to twelve (12) months). When this option is implemented, the employee will be required to undertake work activities in accordance with the classification level to which they have been regressed; or
(iv) Suspension from duty without pay, or
(v) Dismissal, with or without notice as applicable.
12.4.2 In assessing what disciplinary outcome an employee may be subject to, the Company will:
(i) Assess and place appropriate weight to relevant matters only; and
(ii) Give the employee a reasonable opportunity to provide reasons to the Company as to what the appropriate disciplinary outcome should be, taking into account their employment history, including years of service, performance, discipline and their plans for Improving their performance/ conduct.
(iii) Where the Company has elected to suspend the employee from duty or dismiss the employee with or without notice, as a disciplinary outcome, the Company will provide the employee with written Information as to why a verbal or written warning, reprimand, or temporary reduction In position is not an appropriate outcome and allow the employee the opportunity to respond.
12.4.3 Employees who wish to dispute the outcome of a disciplinary procedure, except where the discipline involves dismissal, must follow the procedure set down in Clause 54 of this Agreement.
While it would seem arguable that whatever investigation is occurring or has occurred is not “Internal”, particularly where it has been handed over to the separate organisation Resolvere to investigate, the parties proceeded on the basis the investigation was an internal investigation subject to Clause 12.
In dealing with the meanings of natural justice and due process, each party referred to Coutts. Indeed, the Respondent submitted:[19]
The steps in the procedural fairness obligation, in clause 12.1, which I've referred to, would satisfy, as we would say, any externally provided concept of procedural fairness. Among the cases put before you by both sides is the Coutts decision. There's a pretty close match between what clause 12.1 guarantees and what Coutts says are the reasonable requirements of natural justice.
Insofar as a factual comparison, Coutts stands in probably as stark a contrast as possible to the matter at hand. Indeed, Justice Griffiths in Coutts described the applicant’s approach as a “scattergun attack” on the decision and the decision-making process.[20] In this matter only one redacted document is sought.
In Coutts, a redacted investigation report minus all its appendices was provided to the applicant, and the redaction was the subject of complaint by the applicant.[21] Justice Griffiths noted:[22]
… He complains that he was prejudiced because the redactions prevented him from identifying who were the key witnesses and what they were supposed to be doing and/or witnessing, thereby denying him a proper opportunity of addressing the complaint. …
The Applicant here seeks that witness names be redacted.
In Coutts, Justice Griffiths noted there was no contest that the principles of procedural fairness or natural justice applied.[23] There the basis was legislative,[24] whereas in the matter is hand the principles of natural justice and due process are expressly stated to be applicable in the Agreement.
In Coutts, the principles of procedural fairness were outlined as follows:
Subject to any relevant statutory modification or variation, it is well-established that a person liable to be directly affected by an administrative decision to which the rules of procedural fairness apply must be given an opportunity of putting information or submissions to the decision-maker. For that right to have substance, the person affected must be given an opportunity of ascertaining the relevant issues, which requires the decision-maker to identify for the person affected any issue critical to the decision which is not apparent from the nature of that decision or the terms of the statute under which it is made. The obligation extends to informing the affected person of the nature and content of adverse material that is credible, relevant and significant obtained from sources other than the affected person, as well as of any adverse conclusion reached by the decision-maker in respect of which the affected person had no notice. The affected person must be given an adequate opportunity to address such new material and/or any unexpected conclusions by further information and submission (see, for example, Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 628-629 (Kioa v West); Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 590-592 (Alphaone); SZBEL v Minister of Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at 162 (SZBEL) and Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 599). Generally speaking, however, and subject naturally to the particular statutory context, procedural fairness does not require that a decision maker adopt an “open file” policy which would have the effect of disclosing every submission or piece of evidence to an affected party (see, for example, Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381 (South Sydney City Council)). Ultimately, the fundamental issue here is whether the applicant was given a reasonable opportunity to address issues relevant to his interests.
The point of procedural fairness, or lack thereof, can be simply identified.
(a) By email at 3.22pm on 25 January 2024, Mr Morgan stated:
As I am sure you can appreciate, concerns are often raised where there is an absence of a witness. In these circumstances, ancillary information (for example, contemporaneous reports, credibility of the parties, documentary evidence, etc.) can be considered to determine whether an allegation is, or is not, substantiated. The Investigator considered relevant ancillary information in reaching his determination (including [the Complainant’s] evidence, the evidence of witnesses who observed [the Complainant] immediately following the incidents and Cameron’s text message and responses) in reaching his finding that the incident is more likely than not to have occurred as alleged. I have accepted the findings of the independent, external, and appropriately qualified investigator.
[Emphasis added]
(b) In order to understand the extent of the allegations against him and the evidence relied upon, the Applicant seeks for the RTBU to be provided with a redacted copy of the Report; and
(c) In the absence of production of the redacted Report, the Applicant is not in a position to know the nature and content of adverse material obtained from other witnesses, as well as of any adverse conclusion reached by the decision-maker in respect of which the Applicant had no notice, and no adequate opportunity to address.
I find that in failing to provide the Report, with such names of witnesses to be redacted as to employee names, the Respondent has denied natural justice and due process to the Applicant. As I found in the Decision,[25] the Report apparently contains details of the evidence relied upon by the Investigator in reaching his finding that the incident is more likely than not to have occurred as alleged. I reject the Respondent’s submission that none of the steps in Clause 12 require the Report to be provided to the Applicant (or anyone). Clauses 12.1, 12.1.1 and 12.1.2 require that the existing Report be disclosed to ensure the Applicant is fully aware of the allegations and is allowed to provide an informed response.
Regarding the issue of discretion to require production, the Respondent identified, as summarised at paragraphs [30] to [32] above, what it described as all of the affected rights and interests, including the Respondent's interests and those of other employees whose interests are or may be affected by the dispute and its resolution, including hypothetical future participants in future investigation processes.
What was remarkable about the submissions referred to in the above paragraph was that they did not refer to the “rights and interests” of the Applicant (unless it is to be understood that he fell within the grouping of “all stakeholders”). The Respondent, erroneously, fails to consider the rights and interests of the Applicant, notwithstanding that he has express rights to natural justice and due process under the Agreement.
I note the evidence of Mr Morgan regarding very grave concerns to the Respondent regarding the effect on candid participation in investigations and that investigations should be conducted in confidence. Nothing contained in Mr Morgan’s evidence elevated the concerns of Mr Morgan and/or the Respondent above supposition and possibility.
The concerns identified by Mr Morgan were no greater than the concerns faced by any employer in dealing with confidential investigations of possible employee misconduct. That such investigations may be uncomfortable is without doubt, but such discomfort cannot override express obligations of natural justice and due process.
I find that in failing to provide the Report, with such names of witnesses to be redacted as to employee names, the Respondent has denied procedural fairness and due process to the Applicant, and pursuant to Clause 12 of the Agreement, the Respondent must provide the Report in redacted form to the Applicant’s representative. I consider there is no impediment to that conclusion being expressed by way of the Form 52 order.
The Respondent requested that, if contrary to its submissions an order requiring production of the Report is made, the Order be effective no earlier than seven days from the publication of the decision so that it can take advice and consider its options before the order becomes effective and any such options become otiose. In consideration, the Respondent would take no steps to progress the disciplinary matter in relation to the Applicant during that time.
The requirement to provide the Report in redacted form to the Applicant’s representative will be operative:
(a)from seven days after the date of this decision.; or
(b)from the date of receipt of a confidentiality undertaking from an officer or employee of the RTBU,
whichever is the latter.
DEPUTY PRESIDENT
Appearances:
Mr Williams, D (Solicitor) for Respondent.
Mr Hart, J for the Applicant.
Hearing details:
Microsoft Teams.
2:00PM (Sydney Time) on Tuesday, 27 February 2024.
[1] [2024] FWC 296.
[2] Ibid at [56].
[3] Ibid at [53].
[4] Ibid at [54] and [55].
[5] Transcript PN 77, 79 and 82.
[6] Transcript PN 101.
[7] Transcript PN 103 to 105.
[8] Transcript PN 108 to 111.
[9] Transcript PN 192 to 200.
[10] Transcript PN 261 to 266.
[11] Transcript PN 295.
[12] Transcript PN 276.
[13] Transcript PN 132.
[14] [2024] FWC 296 at [54].
[15] [2014] FCA 19 at [114].
[16] [2017] FWCFB 3005.
[17] [2024] FWC 296 at [43].
[18] [2024] FWC 296 at [45].
[19] Transcript PN 378.
[20] Coutts at [2] and [57].
[21] Coutts at [65] and [73].
[22] Coutts at [65].
[23] Coutts at [111].
[24] Coutts at [28].
[25] [2024] FWC 296 at [57].
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